COURT OF APPEALS HOLDING: After previously demonstrating the ability to conform to an employer’s standards, a claimant’s termination for excessive absences may constitute disqualifying misconduct when the employer has no reasonable way to discover the relevant facts behind the absences and no legitimate explanation is offered by the claimant.

FACTS: Claimant is slightly mentally retarded and worked for Employer for 22 years. Claimant received about 26 unexcused absences over a five-month period, and Employer met with Claimant and her family to discuss the ramifications of accumulating more unexcused absences. Employer made an effort to work with Claimant before ultimately releasing her due to her long tenure with the company, however after accumulating four additional unexcused absences over a two-month period, Claimant was terminated. Claimant’s brother and legal guardian testified that Claimant sometimes became confused about her work schedule, and that most absences were due to a breathing problem Claimant suffers from. A reason for the final four unexcused absences was not provided.

After a determination that Claimant was not disqualified due to misconduct, the ALJ reversed, finding the evidence insufficient to conclude Claimant’s retardation was the cause of her attendance infractions. A split Board of Review affirmed, the dissent instead opining that Claimant’s actions were not “wanton or willful disregard” of Employer’s interests, but instead due to “inability or incapacity.”

DECISION: The decision of the Circuit Court affirming Claimant’s disqualification from benefits due to misconduct is affirmed as the court did not clearly err in finding the Board of Review’s decision was supported by the evidence and not contrary to law.

RATIONALE: It is generally the employer’s burden to demonstrate disqualification for benefits. In the case of termination for excessive absences, disqualifying misconduct must be shown with evidence that the absences were not beyond the employee’s control or otherwise with good cause. However, if the relevant facts are entirely in the hands of the claimant and for all practical purposes cannot be discovered by the employer, the claimant bears the burden to provide a legitimate explanation for the absences.

Here, reasonable minds could differ as to whether Claimant provided sufficient evidence to provide a legitimate explanation for her absences. Plaintiff was able to work for Employer for 22 years before termination, suggesting the general ability to conform to Employer’s expectations, and the explanations provided as to the reason for some of her absences does not necessarily suffice to legitimately explain the particular absences resulting in Claimant’s termination. The standard of review is clear error, and the Circuit Court did not clearly err.